The Constitutionalization of International Law

and the Legitimation Problems of a Constitution

for World Society
Jürgen Habermas

With the monstrous mass crimes of the twentieth century, states as the subjects of international
law forfeited the presumption of innocence that underlies the prohibition on intervention and
immunity against criminal prosecution under international law. Since the end of the Second
World War, of course, international law has not developed solely in response to wars of
aggression and mass crimes; the advances have not been confined to the security and human
rights regime of the United Nations. Both inside and outside the United Nations, forms of in-
ternational governance have developed in the fields of energy, the environment, finance, and
trade policy, of labor relations, organized crime, arms trafficking, combating epidemics, etc.
Continental alliances between states are also developing in tandem with common markets
and currencies. The accelerated incremental growth of international organizations can also
be understood as a response to the need for regulation generated by the increasing interde-
pendence of an emerging world society whose functional subsystems cross national borders.
With these innovations in international law, there is also a growing need for intercultural
communication and interpretation between civilizations shaped by one or more of the major
world religions.
During the same period, the sovereignty of the subjects of international law was not only
formally restricted within the context of the international community – for example, with
regard to the elementary right to conduct war and make peace. Nation-states have in fact lost
a considerable portion of their controlling and steering abilities in the functional domains
in which they were in a position to make more or less independent decisions until the most
recent major phase of globalization (during the final quarter of the twentieth century).1 This
holds for all of the classical functions of the state, from safeguarding peace and physical
security to guaranteeing freedom, the rule of law, and democratic legitimation. Since the
demise of embedded capitalism and the associated shift in the relation between politics and
the economy in favor of globalized markets, the state has also been affected, perhaps most
deeply of all, in its role as an intervention state that is liable for the social security of its
citizens.
These historical developments must be taken into account when it comes to theory-
building; hence it is counterproductive to cling to the state-centered tradition of modern
political thought. It seems more promising to me to take up Kant’s idea of the cosmopolitan
constitution at the requisite level of abstraction with the goal of liberating the notion of a
constitutionalization of international law2 from the idea of a world republic that is rejected
for good reasons.3
On the other hand, the very historical developments alluded to above call to mind a re-
sulting problem that remains unsolved. For as international institutions form an increasingly
dense network and nation-states lose competences, a gap is opening up between the new
need for legitimation created by governance beyond the nation-state and the familiar insti-
tutions and procedures that have hitherto more or less succeeded in generating democratic

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 Constitutionalization of International Law: Jürgen Habermas 445

legitimation only within the nation-state. From the perspective of democratic theory, the em-
pirically well-confirmed diagnosis of the “simultaneity of the delegitimation of the nation-
state and the need for supranational policies to draw upon the legitimation resources of the
nation-state” which Ingeborg Maus has repeatedly emphasized,4 hits a sore point. For exam-
ple, the institutions of the European Union are legally founded on international treaties but
they exercise decision-making competences that intervene so deeply in the social relations
of the member states that they can no longer be legitimized on this foundation alone.5
If the advocates of a constitutionalization of international law are not to write off democ-
racy completely, they must develop at least models for an institutional arrangement that
can secure a democratic legitimation for new forms of governance in transnational spaces.
Even without the backing of state sovereignty, the arrangement sought for must connect
up with the existing, though inadequate, modes of legitimation of the constitutional state,
while at the same time supplementing them with its own contributions to legitimation. In
what follows, I would first like to draw upon a proposal for a political constitution for world
society that I have developed elsewhere and address a specific objection to it (1); in response
to this objection, I will distinguish between the legitimate expectations and demands of
cosmopolitan and national citizens respectively and show how potential conflicts between
them can be institutionally cushioned and processed (2); finally, I will examine how the
legitimation requirements of a democratically constituted world society without a world
government could be satisfied—assuming that nation-states and their populations undergo
certain learning processes (3).

(1) A Global Three-Level System and Nagel’s Problem

The decisive conceptual move – and in this I follow authors like Hauke Brunkhorst6 –
consists in discriminating the three elements of statehood, democratic constitution, and civic
solidarity that are closely linked in the historical form of the constitutional state. Whereas
the political constitution and the solidarity-fostering membership in an association of free
and equal legal subjects can also extend across national borders, the substance of the state
– the decision-making and administrative power of a hierarchically organized authority
enjoying a monopoly on violence – is ultimately dependent on a state infrastructure. To
simplify matters, I will use some quotations from an earlier work7 to recall the non-state
conception of a legally constituted international community that obligates nation-states to
coexist peacefully and authorizes them – i.e. confers on them the ‘sovereignty’ – to guarantee
the basic rights of their citizens within their territories. The international community would
be embodied in a world organization overseeing the performance of these functions and, if
necessary, taking measures against rule-violations by individual governments. That said, the
competences of the world organization would be confined to these fundamental tasks. For
this reason, the supranational level must be distinguished from the transnational level within
the political system of world society:

In a multi-level global system, the classical function of the state as the guarantor of
security, law, and freedom would be transferred to a supranational world organization
specialized in securing peace and implementing human rights worldwide. However, the
world organization would not have to shoulder the immense burden of a global domestic
policy designed to overcome the extreme disparities in wealth within the stratified world
society, reverse ecological imbalances, and avert collective threats, on the one hand, while
endeavoring to promote an intercultural discourse on, and recognition of, the equal rights
of the major world civilizations, on the other. These problems. . .call for a different kind of


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treatment within the context of transnational negotiation systems. They cannot be solved
directly by bringing power and law to bear against unwilling or incapable nation-states.
They impinge upon the intrinsic logic of functional systems that extend across national
borders and the inherent meaning of cultures and world religions. Politics must engage
with these issues in a spirit of hermeneutic open-mindedness through the prudent balancing
of interests and intelligent regulation.8

Whereas the world organization would have a hierarchical structure and its members would
make binding law, interactions at the transnational level would be heterarchical. Thus the
second important conceptual move consists in distinguishing between domain-specific net-
works that coordinate the decisions of independent collective actors at the level of expert
committees, on the one hand, and a central negotiation system that performs political tasks
beyond merely managing interdependencies, on the other:

At present we can observe this in the arena of increasingly numerous and interconnected
transnational networks and organizations designed to cope with the growing demand for
coordination of a world society that is becoming more complex. However, regulation in the
form of the ‘coordination’ of governmental and non-governmental actors is only sufficient
to address a particular category of cross-border problems. The largely institutionalized
procedures of information exchange, consultation, control, and agreement are sufficient for
handling ‘technical’ issues in a broader sense (such as the standardization of measures, the
regulation of telecommunications, disaster prevention, containing epidemics, or combating
organized crime). Since the devil is always in the detail, these problems also call for a
balancing of conflicting interests. However, they differ from genuinely ‘political’ issues
that impinge on entrenched interests which are deeply rooted in the structures of national
societies, such as, for example, questions of global energy, environmental, financial, and
economic policy, all of which involve issues of equitable distribution. These problems
of a future world domestic politics call for regulation and positive integration, for which
at present both the institutional framework and actors are lacking. The existing political
networks are functionally differentiated, multilateral, and at times even inclusive interna-
tional organizations in which government representatives generally bear the responsibility
and have the final word, irrespective of who else is granted admission. At any rate, they
do not provide an institutional framework for legislative competences and corresponding
processes of political will-formation.9

On this proposal, the central negotiation system would exercise competences of a general
kind; however, it would combine the flexibility of state governments, which are able to keep
an eye on the whole, with the non-hierarchical constitution of a multilateral organization
of members with equal rights. Only regionally extensive regimes that are simultaneously
representative and capable of implementing decisions and policies could make such an
institution workable. Alongside such predestined major powers as the United States, China,
India, and Russia, neighboring nation-states and whole continents (such as Africa) would
have to unite on the model of the EU – albeit a future EU that has been empowered to
speak and act with one voice – in order to satisfy this condition. At any rate, the improbable
constellation with which the whole construction stands or falls calls for a certain concentration
of political power in the hands of a few global players. This concentration would have to
be achieved in opposition to the centrifugal forces of the functional differentiation of world
society. In order to determine whether we have already passed the point of no return,10 we
must observe the systemic as well as the normative developments:


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 Constitutionalization of International Law: Jürgen Habermas 447

Even if such a framework were to be established, collective actors capable of implementing

such decisions would still be lacking. What I have in mind are regional or continental
regimes equipped with a sufficiently representative mandate to negotiate for whole conti-
nents and to wield the necessary powers of implementation for large territories. Politics
cannot intentionally meet the spontaneous need for regulation of a systemically integrated,
quasi-natural global economy and society until such time as the intermediate arena is pop-
ulated by a manageable number of global players. The latter must be strong enough to form
shifting coalitions, to produce a flexible system of checks and balances, and to negotiate
and implement binding compromises – above all on framing the global ecological and
economic systems. In this way, international relations as we know them would continue to
exist in the transnational arena in a modified form – modified for the simple reason that
under an effective UN security regime even the most powerful global players would be
denied recourse to war as a legitimate means of resolving conflicts.11

On this conception, the lowest, but supporting, ‘national’ level of the political system of
the world society would be represented by the states that currently make up the United
Nations. Although the political constitution of these members would have to conform to the
constitutional principles of the world organization, the reference to nation-states suggests a
false comparison with the first generation of nation-states that emerged in Europe. Moreover,
it does not take account of the wide variations in the developmental paths taken by other
states that developed out of immigrant societies (USA, Australia), old empires (China),
the collapse of new empires (Russia), European decolonization (India, Africa, Southeast
Asia), and so forth. In the present context, the most important thing is that these nation-
states, notwithstanding all of their other differences, represent the most important source
of democratic legitimation for a legally constituted world society. From this follows, in
particular, the requirement that the transfer of legitimation must not break off within the
regional regimes. This touches upon the problem that particularly concerns the European
Union at its current stage of development: how far must the Union assume the character of
a state if it is to satisfy the standards of legitimation of its member states?
Before I examine (at least under the aspect of conceptual consistency) whether the chain of
legitimation could hold up across all levels of a politically constituted world society, I would
like to address a special legitimation problem that follows from the claim that the world
organization would not assume the character of a state. In a commentary on my proposal,
Rainer Schmalz-Bruns argues that the core of the problem lies in providing “the indispensable
moments of statehood in an abstract form” for the constitutional taming of a violent form of
international politics and in “respecifying them in contextually adequate ways.”12 What he
means, however, is that there is a major gap in the proposed architecture, which primarily
concerns the legitimate expectations and demands of citizens in their contrasting roles
as cosmopolitan and national citizens. Cosmopolitan citizens take their orientation from
universalistic standards which the peace and human rights policies of the United Nations must
satisfy no less than a global domestic politics negotiated among the global players. National
citizens, by contrast, measure the conduct of their governments and chief negotiators in
these international arenas in the first instance not by global standards of justice but above
all by the effective observance of national or regional interests. But if this conflict were
fought out in the heads of the same citizens, the notions of legitimacy that evolved within
the cosmopolitan framework of the international community would inevitably clash with the
legitimate expectations and demands derived from the frame of reference of the respective
nation-states.


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Schmalz-Bruns appeals to an argument of Thomas Nagel, although he goes on to argue,

against Nagel, that a democratic juridification of global politics can be thought of as possi-
ble only within a world republic, however reflexively this is structured. He quotes Nagel’s
reflection: “I believe that the newer forms of international governance share with the old
a markedly indirect relation to individual citizens and that this is morally significant. All
these networks bring together representatives not of individuals, but of state functions and
institutions. Those institutions are responsible to their own citizens and may have to play a
significant role in support of social justice for those citizens. But a global or regional network
does not have a similar responsibility of social justice for the combined citizenry of all the
states involved, a responsibility that if it existed would have to be exercised collectively by
the representatives of the member states.”13 The emphasis in this counterfactual conditional
clause points to the key conclusion for Schmalz-Bruns, i.e. that the political responsibil-
ity of the national or regional governments vis-à-vis their own citizens can be relativized
institutionally to the primacy of the universalistic standards of justice of a political world
constitution only if the latter itself takes on the character of a state. For only in a world state
would the global political order be founded upon the will of its citizens. Only within such
a framework could the democratic opinion- and will-formation of the citizens be organized
both in a monistic way, as proceeding from the unity of the world citizenry, and effectively,
and hence have binding force for the implementation of decisions and laws.
I would like to make a differentiation in response to this objection. Because a politically
constituted world society would be composed of citizens and states, the flow of legitimation
produced by opinion- and will-formation could not proceed directly from the citizens to the
governing power instead we must take two paths of legitimation into consideration:

• the first of which would lead from cosmopolitan citizens, via an international community
composed of member states responsive to their citizens, to the peace and human rights
policy of the world organization; whereas
• the second would lead from national citizens, via a corresponding nation-state (and the
relevant regional regime where one exists), to the transnational negotiation system that
would be responsible, within the framework of the international community, for issues of
global domestic politics, so that
• both paths would meet in the General Assembly of the world organization, for the latter
would be responsible for the interpretation and further development of the political
constitution of world society, and hence for the normative parameters of both peace and
human rights policy and global domestic politics.

(2) Individuals and States as Subjects of a World Constitution

I suspect that Nagel is misled by a false analogy in his conceptual objection against the
democratic construction of a world constitution without a state. Applied to the constitu-
tionalization of international law, the analogy with the social contract suggests the same
construction of a “state of nature” that once served in the social contract tradition as a critical
yardstick for the constitutionalization of national law. However, the political empowerment
of a pre-political global civil society composed of citizens from different nations is a different
matter from imposing a constitution on an existing state power. In classical political theory
the thought experiment of “leaving the state of nature,” which reconstructs state power as if
it proceeded from the rational will of free and equal individuals, is appropriate for taming the
absolutist state. But given our present dilemma, it is not appropriate to ignore the legitimacy
of nation-states under the rule of law and to return to an original condition prior to the state.


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 Constitutionalization of International Law: Jürgen Habermas 449

(In what follows I make a robust simplification by ignoring the fact that by no means all
states have developed democratic constitutions).
Today any conceptualization of a juridification of world politics must take as its starting-
point individuals and states as the two categories of founding subjects of a world constitution.
The (as we would like to assume) legitimate constitutional states qualify as founding members
already in virtue of their current role in guaranteeing the political self-determination of their
citizens. In addition to the potential world citizens, the states represent possible sources of
legitimation because patriotic citizens (in the best sense of ‘patriotic’14 ) have an interest in
preserving and improving the respective national forms of life with which they identify and
for which they feel themselves responsible – in a self-critical way that also extends to their
own national history. There is still another reason why the thought experiment of a “second
state of nature” must take the states as collective subjects into account. Where it is not a
matter of constraining authoritarian state power but of creating political decision-making
capabilities, those subjects who already control the legitimate means of violence and can
make them available to a politically constituted international community are indispensable.
The thought experiment of a “second state of nature” should satisfy three essential condi-
tions:
• (a) the contradiction between the normative standards of cosmopolitan and national
citizens (analyzed by Thomas Nagel) must be defused in a monistic constitutional political
order;
• (b) however, the monistic construction should not lead to a mediatization of the world of
states by the authority of a world republic which ignores the fund of trust accumulated in
the domestic sphere and the associated loyalty of citizens to their respective nations;
• (c) the consideration for the distinctive national character of states and corresponding
forms of life must not, in turn, weaken the effectiveness and the binding implementation
of the supra- and transnational decisions.
(a) In the three-level system outlined, the supranational level will be represented by a
world organization that can be viewed under two aspects. Insofar as the world organization
enjoys the authority to intervene and regulate, it will be specialized in the fundamental
functions of securing peace and protecting human rights; at the same time, however, in
so far as it also embodies the international community of states and citizens as a whole,
it will represent the unity of the global legal system. The Charter can play the role of
a cosmopolitan constitution because it is supposed to rest on both international treaties
and domestic referenda, and hence would be enacted “in the name of the citizens of the
states of the world” (echoing the formula employed in the European draft constitution). A
General Assembly composed of representatives of cosmopolitan citizens, on the one side,
and delegates from the democratically elected parliaments of the member states, on the other
(or, alternatively, of one chamber for the representatives of the cosmopolitan citizens and one
for the representatives of the states) would initially convene as a Constituent Assembly and
subsequently assume a permanent form – within the established framework of a functionally
specialized world organization – as a World Parliament, although its legislative function
would be confined to the interpretation and elaboration of the Charter.
(b) The General Assembly would be, among other things, the institutional locus for inclusive
process of opinion- and will-formation concerning the principles of transnational justice
from which global domestic politics should take its orientation. However, this discussion
could not take the form of a philosophical discussion of justice15 for the simple reason that
it would be predetermined in a certain sense by the composition of the General Assembly.


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Even when the representatives of the member states and the citizens of global civil society
were united in a single person, they would have to reconcile competing justice perspectives.
The delegates would have to combine the task of representing the citizens of their respective
nation-states with that of safeguarding the interests of these same citizens in their capacity
as cosmopolitan citizens. The dual status of the delegates who could not sacrifice one half
of their identity to the other – or, alternatively, the establishment of a system comprising
two corresponding chambers – would prevent a priori decisions that could jeopardize the
integrity of states and the corresponding national forms of life.
In this constellation, the fundamental questions of transnational justice would arise under
institutionally determined premises. First, the inclusion of all persons in a cosmopolitan
political order would demand not only that everyone should be accorded political and civic
basic rights but in addition that the ‘fair value’ of these rights should be guaranteed. This
means that cosmopolitan citizens would have to be guaranteed that the conditions that they
require given their respective local contexts if they are to be able to make effective use
of their formally equal rights would be fulfilled. On this basis, fair boundaries between
national and cosmopolitan solidarity – i.e. ones acceptable to both sides – would have to be
laid down. This tricky problem arises not only with regard to natural catastrophes, epidemics,
war devastation, etc., but in the first place regarding the mutual obligations that spring from
increasing cooperation between states, governments, and peoples. Such cooperation is an
inevitable consequence of the increasing functional interdependence of an emerging world
society. With the inclusion of the most remote global regions in the same practices of the
global economy, global communication, and global culture, the urgent question arises of
when the particular duties of national governments toward their own citizens – based on
reciprocally recognized national borders and identities – must take a back seat to the legal
obligations that the states incur towards all cosmopolitan citizens equally as members of
the international community. These obligations of the states are derived from the duties
that the citizens of privileged nations have towards the citizens of disadvantaged nations,
where both are considered in their role as cosmopolitan citizens. This kind of issue is by no
means new, for similar questions also arise within individual states. When the constitution in
federations such as Germany calls for revenue sharing among the states and regions aimed
at producing “equal living conditions,” it has to be assessed in which cases and respects
civic solidarity can claim priority over the regional self-interest of those living in the thriving
and well-to-do states. (As it relates to individual persons as opposed to political units, the
dispute in economic and social policy between liberals who want to “ease the burdens on
the productive sector” and socialists who want to stop “redistribution from the poor to the
wealthy” can be understood as a controversy concerning the primacy of civic solidarity over
the particular duties of private citizens towards themselves and their dependents).
(c) The project of a world domestic politics without a world government leaves open the
important question of who is supposed to implement the high-minded principles and norms
agreed upon if the nation-states preserve their state character, and hence their monopoly on
the use of violence. How should we imagine supra-state institutions that could vouch for
the implementation of a just global order even though states remain states, so to speak? The
model of a multi-level system offers a different answer to this question depending on the
policy field. Because it is supposed to secure international peace and protect human rights,
the world organization would have a hierarchical position vis-à-vis the member states. It
would employ force in emergencies and would draw upon the sanctioning capacities ‘lent’ to
it by the able and willing members. According to the well-known logic of security systems
– and within the framework of a suitably reformed world organization – such a practice can


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 Constitutionalization of International Law: Jürgen Habermas 451

become established in so far as the sovereign states learn to understand themselves also as
solidary members of the international community.
At the transnational level there is an increasing need for coordination between functional
systems that is already satisfied more or less effectively by international organizations. As
we have seen, however, this holds primarily for technical questions that can be answered by
experts and do not touch upon deep-seated conflicts of interests. The situation is completely
different with problems involving issues of redistribution that call for a positive coordination
of action between states. In issues of truly global political scope, at present we lack the
necessary institutions and procedures to decide upon programs and implement them on a
broad scale. Equally lacking are appropriate actors who could negotiate compromises on
these issues and ensure the implementation of decisions reached through fair negotiations.

(3) Legitimation Requirements and Learning Processes

Having outlined the concept of a possible world order, I now want to return to our initial
question of the conditions under which a corresponding politically constituted world society
could be democratically legitimated without assuming the character of a state.
At the supranational level, a twofold need for legitimation arises. On the one hand, the
negotiations and resolutions of the General Assembly must be legitimized, on the other,
the legislative, executive, and adjudicative practice of the other organs (Security Council,
Secretariat, courts). There is a qualitative difference in the need for legitimation in the
two cases, but it can be satisfied in both cases only if a functional global public sphere
emerges.16 Vigilant civil society actors who are sensitive to relevant issues would have to
generate worldwide transparency for the corresponding issues and decisions and provide the
opportunity for cosmopolitan citizens to develop informed opinions and take stances on these
issues. These stances could produce effects through the elections to the General Assembly.
This kind of feedback would be absent in the case of the other organs of a (judicially
equipped) world organization that had undergone the corresponding reforms. This missing
link in the chain of legitimation would have to be balanced off against the nature of the need
for legitimation. The General Assembly, as the legislator under international law, (already)
observes the logic of an internal elaboration of the meaning of human rights. In so far as
international politics takes its orientation from this development, therefore, the resulting
tasks at the supranational level would be more judicial than political ones. To be sure, a
diffuse world public opinion armed solely with the weak sanctioning power of “naming
and shaming” could at best exert a weak form of control over the interpretive, executive,
and judicial decisions of the world organization. But couldn’t this deficiency be made good
through internal controls, namely, through enhanced veto rights of the General Assembly
against resolutions of the (reformed) Security Council, on the one hand, and rights of appeal
of parties subject to Security Council sanctions before an International Criminal Court
equipped with corresponding authority, on the other?
In so far as the operation and interplay of these organs conformed to constitutional
principles and procedures that reflect the outcome of long-running democratic learning
processes, it might be acceptable that the remaining need for legitimation would be met by
an informal global opinion. For the mobilizing power that an alert global opinion acquires
at critical moments of world history and transmits to governments through the channels of
the national public spheres can have a major political impact, as is shown by the worldwide
protests against the invasion of Iraq in violation of international law. The negative duties of a
universalistic morality of justice – not to commit crimes against humanity and not to engage


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in wars of aggression – are anchored in all cultures and fortunately correspond to the legally
elaborated standards in terms of which the organs of the world organization would also
have to justify their decisions internally. The confidence in the normative power of judicial
procedures is nourished by a “credit” of legitimation that is “extended” to the collective
memory of humankind by the exemplary histories of proven democracies.
The need for legitimation that would arise at the transnational level is of a different kind.
The provisions of global domestic politics negotiated by the global players would retain an air
of classical foreign policy from the perspective of the populations affected. To be sure, war-
making as a means of resolving conflicts would be prohibited; but the normative framework
of the cosmopolitan constitution would prohibit the power-driven compromise formation
between unequal partners from violating certain normative parameters set by the Charter. The
fairness of the results could not be guaranteed completely independently of the mechanism
of the balance of power, among other things the capacity for forming prudent coalitions.
This does not mean that normative discourse would be excluded in favor of classical power
politics at the transnational level. Power politics would no longer have the last word within
the normative framework of the international community. The balancing of interests would
take place in the transnational negotiation system under the proviso of compliance with
the parameters of justice subject to continual adjustment in the General Assembly. From
a normative point of view, the power-driven process of compromise formation can also
be understood as an application of the principles of transnational justice negotiated at the
supranational level. However, “application” should not be understood in the judicial sense
of an interpretation of law. For the principles of justice are formulated at such a high level of
abstraction that the scope for discretion they leave open would have to be made good at the
political level.
The democratic legitimacy of the compromises negotiated here would rest on two pillars.
As in the case of international treaties, it would depend, on the one hand, on the legitimacy
of the negotiating partners. The delegating powers and regional regimes would have to take
on a democratic character themselves. In view of the democratic deficit that exists even in
the exemplary case of the European Union, this extension of the chain of legitimation of
democratic procedures beyond national borders already represents an immensely demanding
requirement. On the other hand, the national public spheres would have to become responsive
to one another to such an extent that transparency would be created for transnational politics
within regional regimes and major powers. The delegated chief negotiators would be equipped
with a democratic mandate at the translational level only in so far as a process of political
opinion- and will-formation concerning the parameters of global domestic politics is created
among the citizens who are in a position to influence the delegating authorities.
So much for the nature of the need for legitimation. But what learning processes would
be necessary before it could be satisfied within the institutional framework outlined? So far
we have only addressed the question of conceptual coherence. But such constructions are
always open to suspicion: are they merely naı̈ve speculations or do they perhaps offer a way
out of a concrete dilemma?
Many commentators suspect that to assume that powerful states would provide sufficient
means of sanction for the effective and impartial implementation of UN law is to play down
the importance of state power in a naı̈ve way. This holds especially for the more far-reaching
notion that the normatively constrained and pacified interplay of forces between regional
regimes and major powers in the indistinct zone between domestic and foreign policy could
provide a suitable medium for a more or less fair global domestic politics. Clearly, states and
nations as we know them are still far from satisfying this normative expectation. Anyone who


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still harbored illusions concerning the strength of national power interests and the acuteness
of cultural conflicts has been disabused since the breach of normative constraints triggered
throughout the global arena by the shift in policy of the U.S. government in 2001. On the
other hand, an unvarnished policy of double standards is no longer accepted as normal either.
This criticism, which is now widely accepted, is also justified by historical learning processes
since the end of the Second World War in Europe and other global regions.
From the perspective of a politically constituted world society, both governments and
populations would have to adopt new orientations and in this sense “learn.” Of course, it is
easier for smaller states that are exposed to the full force of the imperatives of an increasingly
globalized economy and the pressures to cooperate of an increasingly complex world society
to internalize the norms of the world organization. They find it easier than the major powers
to learn to see themselves as members of the international community and as co-players in
international organizations without formally renouncing their monopoly on violence.
The de facto development is also reflected at the normative level of the evolution of basic
concepts in international law. The classical meaning of sovereignty has already shifted in a
direction anticipated by Hans Kelsen. Today the sovereign state is supposed to function as
a fallible agent of the world community; under the threat of sanctions, it performs the role
of guaranteeing human rights in the form of basic legal rights to all citizens equally within
its national borders. The conception of legal validity, which hitherto took its orientation
from positive and coercive national law, is also undergoing tacit change. In so far as the
competences to set and implement law no longer reside in the same hands, an essential
presupposition of this conception is no longer fulfilled. In this regard the European Union,
with its division of labor between supranational and national levels, provides an instructive
example. While the central institutions enact European law, the member states, although
they retain the monopoly of the legitimate means of violence, are bound to – and in fact do
– implement the decisions of the European authorities without further ado. As this pattern
works in other sectors of international law, too, the gap in the dimension of legal validity or
degree of bindingness between international and national law is already narrowing.
The other learning process concerns peoples more than their governments, namely, over-
coming an obstinate frame of mind historically bound up with the evolution of the nation-
state. In the course of the regional amalgamation of nation-states into empowered global
actors, national consciousness, hence the existing basis of an already highly abstract form
of civic solidarity, would have to undergo a further extension. A mobilization of masses on
religious, ethnic, or nationalistic grounds will become less probable the more the demands
for tolerance of a pluralistic civic ethos already find acceptance within national borders. In
this sense, the development of a European identity can be understood as the continuation
of a process that is already taking place within some of the member states. In response to
challenging historical experiences and in the course of the political and cultural integration
of immigrant groups who retain ties to their countries of origin, there are, within these
borders, initial signs of a properly understood constitutional patriotism as the basis of civic
integration.
Thus far, the national governments have been the pacemakers in the contract-based con-
struction of new legal relations that function like a self-fulfilling prophecy when they prompt
new practices and give rise to self-maintaining patterns of action. This kind of lawmaking of-
ten anticipates the transformation in mentalities that only occurs among the addressees as the
laws in question are gradually implemented. This holds as much for the political elites as for
the citizens. This hypothesis concerning the socializing effects of imposed legal norms also
explains Antje Wiener’s finding that the national elites who go to Brussels or Strasburg think


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454 Constellations Volume 15, Number 4, 2008

in more European terms than those who remain in their national bases.17 The implications
of a legal change in status that is initially accepted formally permeate the consciousness of
the broader population only as a result of practical experiences. For example, the experience
of entering and leaving European and non-European foreign countries first lends European
citizenship vividness in people’s minds.
The image of a mentally lethargic population ‘lagging behind’ the political elites in the
process of enlargement represents just one side of the coin. Once elites decide to make
existential questions such as the adoption of a European constitution into the focus of a
wide-ranging, informed public debate, a population can also outstrip its government. One
explanation for the unpredictability of referenda is that a politically mobilized population
can make decisions without concern for the interest of professional politicians in retaining
power. For example, the “European enthusiasm” of the national elites dwindles once their own
powers and opportunities for self-promotion are placed in question along with the scope for
action of national governments – with the role of the French or the German foreign minister
or with the importance of the President, the Chancellor, or the Prime Minister. The peculiar
dialectical relation between the learning processes of populations and those of governments
suggest that, for example, the impasse in the development of the European Union following
the failure of two referenda, which the Lisbon Treaty does not really overcome, cannot be
removed through the customary intergovernmental agreements.
(Translated by Ciaran Cronin)

NOTES

The text reproduces parts of my reply to the essays in Peter Niesen and Benjamin Herborth, eds., Anarchie
der kommunikativen Freiheit (Frankfurt am Main: Suhrkamp, 2007), 406–459.
1. Stephan Leibfried and Michael Zürn, eds., Transformationen des Staates? (Frankfurt am Main:
Suhrkamp, 2006); Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer, eds., Trans-
forming the Golden-Age Nation State (Hampshire: Palgrave Macmillan, 2007).
2. This idea found support primarily among German international lawyers after the Second World
War; see, above all, Christian Tomuschat, International Law: Ensuring the Survival of Mankind. Collected
Courses of the Hague Academy of International Law, vol. 281, 1999 (The Hague: Martinus Nijhoff, 2001);
in addition, Jochen A. Frowein, “Bilanz des 20. Jahrhunderts – Verfassungsrecht und Völkerrecht,” in
Hartmut Lehmann ed., Rückblicke auf das 20. Jahrhundert (Göttingen: Wallstein, 2000), 35–54; Bryn-Otto
Bryde, “Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts,” in Der
Staat 42 (2003): 62–75. See, more generally, Angelika Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht
(Berlin: Duncker & Humblot, 2007); Ann Peters, “Die Zukunft der Völkerrechtswissenschaft: Wider den
epistemischen Nationalismus,” in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 67 (2007):
721–76.
3. Jürgen Habermas, “The Postnational Constellation and the Future of Democracy,” in The Post-
national Constellation: Political Essays, ed. and trans. Max Pensky (Cambridge: Polity, 2001), 58–112.
By contrast, Daniele Archibugi and David Held, eds., Cosmopolitan Democracy (Cambridge: Polity, 1995)
and David Held, Democracy and the Global Order (Cambridge: Polity, 1995) advocate a state model of
cosmopolitan democracy; on the idea of a federal world republic, see Otfried Höffe, Demokratie im Zeitalter
der Globalisierung (Munich: Beck, 1999).
4. Ingeborg Maus, “Volkssouveränität und das Prinzip der Nichtintervention in der Friedensphiloso-
phie Immanuel Kants,” in Hauke Brunkhorst, ed., Menschenrechte und bewaffnete Intervention, 88–116;
idem, “Verfassung und Vertrag.” On the juridification of global politics, see Niesen and Herborth, Anarchie
der kommunikativen Freiheit, 350–82.
5. On the consequences of the failure of the European Constitution, see Habermas, “Europa in der
Sackgasse,” in Ach Europa (Frankfurt am Main: Suhrkamp, 2008).
6. Brunkhorst, “Demokratie in der globalen Rechtsgenossenschaft,” in Zeitschrift für Soziologie:
Sonderheft Weltgesellschaft (2005), 330–48; Brunkhorst, “Die Legitimationskrise der Weltgesellschaft:


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 Constitutionalization of International Law: Jürgen Habermas 455

Global Rule of Law, Global Constitutionalism und Weltstaatlichkeit,” in Weltstaat und Weltstaatlichkeit, ed.
Matthias Albert and Rudolf Stichweh (Wiesbaden: VS, 2007), 63–109.
7. Habermas, “A Political Constitution for the Pluralist World Society,” in Between Naturalism and
Religion, trans. Ciaran Cronin (Cambridge: Polity, 2008), 312–52.
8. Ibid., 333–4.
9. Ibid., 323–4.
10. One can get this impression from the networks of informal legal innovations that for the most
part escape clear political responsibility and provide the inspiration for the concept of “global administrative
law.” See the symposium on “Global Governance and Global Administrative Law in the International Legal
Order,” European Journal of International Law 17, no. 1 (2006).
11. Habermas, “A Political Constitution for the Pluralist World Society,” 324–5.
12. Rainer Schmalz-Bruns, “An den Grenzen der Entstaatlichung. Bemerkungen zu Jürgen
Habermas’ Modell einer, Weltinnenpolitik ohne Weltregierung,” in Niesen and Herborth, eds., Anarchie
der kommunikativen Freiheit, 269–93. See also William E. Scheuerman’s review essay, “Global Gover-
nance without Global Government? Habermas on Postnational Democracy,” Political Theory 36, no. 1
(February 2008): 133–51.
13. Thomas Nagel, “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005):
113–47, here 139 ff.
14. Jan-Werner Müller, Constitutional Patriotism (Princeton: Princeton University Press, 2007).
15. Though this is the position taken by Joshua Cohen and Charles Sabel in their critique of Hegel’s
methodological nationalism in “Extra Republicam Nulla Justistia?” Philosophy and Public Affairs 34,
no. 2 (2006): 147.
16. Compare the more skeptical account of relevant empirical studies by Patrizia Nanz and Jens Stef-
fek, “Zivilgesellschaftliche Partizipation und die Demokratisierung internationalen Regierens,” in Niesen
and Herborth, Anarchie der kommunikativen Freiheit, 87–110.
17. Antje Wiener, “Demokratischer Konstitutionalismus jenseits des Staates?” in Niesen and Her-
borth, Anarchie der kommunikativen Freiheit, 173–98.

Jürgen Habermas is Emeritus Professor at the University of Frankfurt. His most recent
titles in English translation include Time of Transitions (2006), The Divided West (2006) and
Between Naturalism and Religion (2008).


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